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The Commission of Inquiry: Israel’s Accountability for War Crimes during Operation Protective Edge and Operation Brothers Keeper

We are happy to welcome this post from Dr Susan Power, who lectures International Criminal Law at Griffith College Dublin and is a legal researcher for Al-Haq, a Palestinian human rights organization based in Ramallah, Palestine. The views expressed are those of the author and do not represent those of the institutions for which the author currently works.

This post on the 2015 Commission of Inquiry (COI) into the OPT, presents an overview of the COI’s examination of Israel’s accountability for war crimes committed during Operation Protective Edge and Operation Brothers Keeper in the OPT. Notably the preamble to Human Rights Council resolution S-21/1 had indicated grave concern at the lack of implementation of the recommendations of the Goldstone Report in 2009, which had given rise to a “culture of impunity”. In 2009, the Goldstone report surmised, “it was struck, as well, by the comment that every time a report is published and no action follows, this ‘emboldens Israel and her conviction of being untouchable’. To deny modes of accountability reinforces impunity, and tarnishes the credibility of the United Nations and the international community” (para. 1957). The Human Rights Council had noted a “systemic failure” by Israel in investigating international crimes orchestrated against Palestinians, and issued the 2015 COI with a mandate to make recommendations on accountability measures. This article will examine how the COI has addressed the systematic impunity which prevails over crimes committed by Israeli forces in the OPT

(1) Establishing ‘Patterns of Alleged Violations’

Interestingly, the Commission outlines the significance in establishing “patterns of alleged violations” (para. 13) adopting the language of gross violations of human rights derived originally from Human Rights Commission Resolution 8 (XXIII) (1967) on the ‘Study and Investigation of Situations Which Reveal a Consistent Pattern of Violation of Human Rights’. The language of “pattern” has been used in the Inter-American court system to describe the seriousness of human rights violations. A ‘pattern of alleged violations’ may denote a widespread or systematic attack against the civilian population, or it may also fit into the threshold of Article 8 war crimes, “committed as part of a plan or policy of a large-scale commission of such crimes”.

However the COI generally refers to patterns of events, which although singularly might comport with the LOAC, taken altogether amount to an attack on the civilian population. For example, the COI cite the ICTY Kupreskic Judgment whereby a “pattern of military conduct may turn out to jeopardize excessively the lives and assets of civilians”. This referred to warnings outlined in Article 58 and 59 API, which were rendered ineffective by repeated attacks against civilians. The delivery of ineffective warnings instead established a pattern of conduct creating an environment conducive to attacks on civilians. Furthermore, the COI Report indicates that “the blockade and the military operation have led to a protection crisis and chronic, widespread and systematic violations of human rights” (para. 24) indicating potential crimes against humanity, although the detailed report refers only to ‘widespread’ human rights violations (para 550).

(2) The Commission of War Crimes

At a minimum, the COI found that there were reasonable grounds for concluding that Israel may have committed war crimes. The COI considered that there were strong indications that IDF attacks on residential properties located in densely populated areas of the Gaza Strip, in the absence of an anticipated military advantage, violated the principle of proportionality and amounted to war crimes. Furthermore, the use of GBU-32/MK-82, 1000lb and GBU 31/MK-84, 2000lb bombs in densely populated areas were intended to have a wide impact, thus violating the prohibition on indiscriminate attacks (para. 226). As such, the targeting of civilians not taking part in hostilities, violated the principle of distinction and amounted to war crimes. Nor was the COI convinced that Israel had taken all feasible precautions in attacks. The COI pointed inter alia to other war crimes committed by the IDF including the razing of Khuza’a, (para. 337), the IDF’s use of human shields (para. 346), the torture and ill treatment of Palestinian civilians (para 346), indiscriminate attacks orchestrated by the implementation of the Hannibal Directive in Rafah (para. 365), the use of indiscriminate weapons amounting to a direct attack on civilians (para 415, 446), attacks on medical transports and medical personnel (para 464) and willful killing in the West Bank including East Jerusalem (para. 71 of Report).

(3) War Crimes as Policy or Plan

Overall, the COI established that the war crimes were committed as part of a broader military and governmental policy and plan. For example, the COI expressed its concern that Israel had applied a liberal understanding of ‘military objective’, which was “broader than the definition provided by international humanitarian law”. More specifically, the COI considered that IDF strikes on civilian property amounted to military tactics, which were reflective of a broader policy sanctioned by decision makers in the highest levels of government. Similarly, it considered Israel’s use of the Hannibal Directive, to use all means to prevent the abduction of a soldier as “unusually expansive in terms of defining what targets are legitimate military objectives” (para. 360). This contributed to a military culture, which contributed to “the unleashing of massive firepower on Rafah” (para. 371). In addition, IDF policies on using inaccurate weapons in densely populated areas contributed to significant civilian casualties (para. 414).

(4) Ineffectiveness of Existing Accountability Mechanisms

Notably, the ICC has opened a preliminary examination into the situation in Palestine. Should a situation be opened, in terms of complementarity, the ICC may find a case admissible where a State remains inactive or is otherwise unwilling or unable to genuinely investigate or prosecute crimes within the jurisdiction of the Court. In this regard, the transparency of Israel’s Military Advocate General (MAG) and General Staff Mechanism for Fact-Finding Assessments (FFAM) investigations into incidents during Operation Brothers Keeper and Operation Protective Edge is significant (para. 114). The COI noted that investigations had not taken place into IDF attacks on Shuja’iya (para. 298). Despite the gravity of crimes described by the COI, by April 2015, the MAG had identified seven incidents for examination, three of these related to minor incidents of soldiers looting. Accordingly, the COI questioned the independence, impartiality and transparency of Israel’s system of investigations – for example the Israeli High Court of Justice had adopted a position of non-intervention in matters relating to the military prosecutor. Moreover, Israel by not allowing lawyers for complainants review investigatory materials, and not informing complainants of MAG decisions had operated in an “accountability vacuum”. Altogether the COI concluded that the investigations of the FFAM tended to focus on “exceptional incidents” leaving out examinations of IHL stemming from an intentional policy or military command. As such, there was no examination into the role of senior Israeli military and civilian leaders in relation to violations of IHL.